In Olevik v. State, the Supreme Court of Georgia (on October 16, 2017) held that the Georgia Constitution prohibits law enforcement officials from compelling a person suspected of DUI to “blow their deep lung air into a breathalyzer.” The protection against self-incrimination enshrined in the Georgia Constitution, and in Georgia case law dating back to 1879, differs from the United States Constitution, as the latter only provides protection for individuals against incriminating themselves through testimonial evidence. Tangible evidence, such as the results of a breathalyzer test is not protected by the self-incrimination provision of the 5th Amendment.

Georgia law has a two tier DUI statute under which an individual who operates a motor vehicle under the influence of drugs or alcohol can be charged. First, a person is guilty of “DUI per se” when he or she operates a motor vehicle with a blood alcohol content (“BAC”) of 0.08 grams or more. Moreover, regardless of BAC, it is unlawful for a person to drive under the influence of alcohol or drugs to the extent it is less safe to do so. The latter is commonly known as “DUI less safe.” This two tier statutory framework reflects the Georgia legislature’s belief in the importance of combatting drivers who get behind the wheel while under the influence of drugs or alcohol. However, the enforcement of this important policy requires cooperation from the suspect, as determining whether a driver is under the influence requires field sobriety and chemical tests of the driver’s breath, blood, or urine. So, to elicit cooperation from potentially impaired drivers, Georgia enacted an implied consent statute which provides that drivers have agreed to submit to chemical testing as a condition of receiving a driver’s license, and that a person’s driving privilege will be suspended if he or she refused to take a chemical test after being arrested for a DUI offense, or having been involved in a traffic accident resulting in serious injuries or fatalities.

Mr. Olevik was arrested and charged for DUI, and after the trial court rejected his motion to suppress the breath tests on the basis that the he was coerced into taking the test in violation of his right against compelled self-incrimination, Olevik was found guilty of the charges following a bench trial. Olevik appealed the denial of his motion to suppress the breathalyzer results, but the Supreme Court of Georgia ruled that his claims were precluded by earlier case law. However, at oral argument Olevik’s attorney requested that the court reexamine whether the precedent remained good law. Specifically, the Supreme Court held that Klink v. State was wrongly decided to the extent that it “concluded that a breath test did not implicate the state constitutional right against compelled self-incrimination.”

The California Department of Motor Vehicles indicated this week that an updated set of proposed rules for self-driving cars would only require companies that test self-driving cars to notify local authorities about when the testing would occur, but need not ask for permission. Peter Sweatman, predicted that fully autonomous cars will probably be in use for ride-sharing and parcel delivery within 18 months, and according to the California Department of Motor Vehicles, forty-two companies are already testing 285 autonomous vehicles with backup drivers on California roads. Current California rules require a human driver as backup on public roads; however, the updated set of proposed rules may not include a human driver requirement. This disclosure should concern interested parties from several different viewpoints.

(photo attributed to www.motorauthority.com)

First, safety concerns of pedestrians and other drivers on the road should be the primary focus of inquiry where autonomous vehicles are operated without human oversight. Not only does all technology inevitably malfunction, but the hacking of new technologies has become increasingly prevalent in today’s society. The hacking of consumer data and personal information has been the primary focus recently, but that could change if hackers are given a new target with no human fail-safe in place. For example, the malfunction of a navigation system of an eighteen-wheeler could result in numerous fatalities, particularly in California where the roads are consistently congested. The consequences are largely speculative at this point, but if commercial vehicles full of consumer goods are entirely autonomous, it is plausible to suggest that hackers could enter the vehicles navigation system and alter destinations, or cause the vehicle to crash and destroy the vehicles payload. Such an accident would be widely publicized and would likely have significant impacts on a company’s stock.

One of the leading international manufacturers of motorcycles has been sued by an injured motorcyclist following a crash allegedly resulting from Harley Davidson’s failure to warn Kenneth LaMountain about a defect in the cooling line system. More specifically, Mr. LaMountain, the plaintiff, crashed while operating his Harley Davidson motorcycle after the engine oil cool line line system malfunctioned, causing oil to leak onto the rear tire resulting in the motorcycle crashing and injuring the plaintiff.

There are several different legal doctrines upon which a products liability claim can be based. The first, a manufacturing defect, alleges that the motorcycle part in question was faulty or failed to conform with the specifications of how the part was normally designed and manufactured. Thus, when alleging a manufacturing defect, the plaintiff must prove that the product is more dangerous than a consumer would reasonably expect when using the product in its intended manner, or that the product is in a condition not intended by the manufacturer and the defect existed at the time it left the defendant’s hands. Moreover, the law imposes strict liability upon manufacturers where a product is in an unreasonably dangerous defective condition, meaning that any plaintiff who is a user, consumer or bystander injured while using a defective product may recover damages. Strict liability differs from a negligence action where a plaintiff must prove that the defendant owed plaintiff a duty, the defendant breached that duty, and the plaintiff suffered injuries as a proximate result of the defendant’s breach. Here, the complaint alleges that Harley Davidson should be held strictly liable for a manufacturing defect, as the oil clamps were in a flawed condition when it left the manufacturer’s control.

The second legal doctrine is failure to warn, where the plaintiff must show that the defendant breached its duty to warn about risks of which it knew or should have known. Typically, a plaintiff will show that the injury is attributable to the defendant by showing that the defect that injured the plaintiff was in existence at the time it left the defendant’s control. The general requirement that the plaintiff show that the defect was in existence at the time it left the defendant’s control is likely why the plaintiff brought the duty to warn claim in the suit against Cowboy Motorsports, the distributor, rather than the manufacturer. In this case, absent clear evidence, the plaintiff will likely be unable to prove that the manufacturer, Harley Davidson, knew or should have known about the risk. Thus, the plaintiff’s attorney brought this duty to warn against the party against whom he was more likely to prevail.

Recently, in Georgia Farm Bureau Mutual Insurance Company v. Rockefeller, the Court of Appeals of Georgia upheld the trial court’s ruling that declined to allow the insurance company to offset Rockefeller’s worker’s compensation recovery against the amount the company owed to him under his policy. Because the driver of the other vehicle involved in the accident did not have sufficient insurance coverage to pay for Rockefeller’s damages, he sought additional compensation under his policy with Georgia Farm Bureau. Rockefeller had four uninsured motorist (“UM”) policies totaling $100,000 that were in effect at the time of the accident. However, Georgia Farm Bureau argued that because Rockefeller received $197,966.55 through workers compensation benefits for his injuries, and a $25,000 settlement from the other driver’s insurance company, his recovery exceeded the coverage limits of his UM policies, thus reducing Georgia Farm Bureau’s liability to Rockefeller under the UM policies to zero.

But, Rockefeller’s workers’ compensation award provided a weekly amount less than the wages he was earning at the time of the accident, so he accumulated an additional $183,022.38 in lost wages for which he was not compensated. The Court of Appeals rejected Georgia Farm Bureau’s argument, and held that the insurance company was liable up to the $100,000 combined coverage limit of Rockefeller’s four UM policies for losses he sustained that were not covered by his worker’s compensation award or his settlement with the other driver’s insurer.

The parties’ argument in this case revolved around the interpretation of OCGA § 33-7-11 which essentially provides that insurance policies may contain provision which provide for exclusions of liability of the insurer for personal injury or death for which the insured has been compensated under a workers’ compensation policy. Rockefeller’s insurance policy with Georgia Farm Bureau contained such a limitation, but the court refused to allow Georgia Farm Bureau to offset the amount owed to Rockefeller under his uninsured motorist policy by the amount Rockefeller recovered from other sources. This case provides an important precedent establishing a distinction between situations where plaintiffs would receive a duplicative recovery and where insurance companies seek to avoid the disbursement of funds owed under insurance policies simply because the policy-holder received some compensation from other sources. Thus, even where a plaintiff recovers some compensation from a source, like worker’s compensation, a non-duplication provision does not bar the insured from recovering from his insurer for uncompensated losses. While it is understandable that insurance companies would want to include non-duplication provisions in policies with their insureds, this ruling makes clear that insurance companies will not be let off the hook simply because their insureds have been partially compensated by alternative means. This holding reaffirms the precedent in Marby v. State Farm Automotive Insurance Corporation, which states that insurance companies remain liable up to the amount set forth in the policy limits so long as the plaintiff remains uncompensated for at least a portion of their damages, including future medical expenses, future lost earnings, and past and future pain and suffering.

Automobile body shops filed several complaints against insurance companies, including State Farm, alleging violations of state tort law as well as violations of the Sherman Act’s antitrust laws, which prohibit certain anti-competitive conduct. The claims were based upon allegations that that the insurance companies engaged in a two-tiered scheme designed to depress the shops’ rates for automobile repair. First, according to the allegations, the insurance companies scheme was designed to set an artificial price, or “market rate.” The second part of the scheme was designed to force the body shops into accepting the artificially set rate by steering the insureds who sought automotive repairs away from the non-compliant shops that charged more than the artificial rate. The lower court initially dismissed the complaint for failure to state a claim upon which relief may be granted, based upon an assertion that the automobile body shops failed to plead facts that directly supported the existence of a violation of antitrust laws. The Court of Appeals reversal of the dismissal was due in part to the standard of review for dismissal for failure to state a claim, which requires the court to accept factual allegations as true and draw all reasonable inferences in favor of the claimant, and viewed in the light most favorable to the plaintiffs.

The first part of the scheme was essentially a horizontal price fixing agreement, where competitors unlawfully came together to form an agreement to set a price at which all agreed to sell a good or service. The Sherman Act makes unlawful “any unreasonable contract, combination, or conspiracy in the restraint of interstate trade or commerce. As stated above, the body shops plead facts supporting the circumstances from which the shops infer the existence of an agreement, rather than facts that directly supported the existence of the agreement. The circumstances pled by the body shops demonstrated parallel conduct, adoption of a uniform price, and uniform practices. When pleading antitrust violations based upon a horizontal price fixing agreement, plaintiffs usually must demonstrate that such a contract or conspiracy is unreasonable and anticompetitive, otherwise known as the “rule of reason” test. However, especially egregious violations are often classified as “per se” violations which are “conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” But, as was the case for the body shops, where no direct evidence of an agreement has been proffered, an antitrust claimant “must show parallel conduct” as well as “further factual enhancement.” Thus, because the body shops “readily and plausibly” established an inferred agreement, the Court of Appeals found that they pled facts sufficient to survive a motion to dismiss for failure to state a claim.

The second part of the scheme, which was essentially a boycott, also runs afoul of the Sherman Act. The Sherman Act’s prohibition against any unreasonable contract, combination or conspiracy in the restraint of trade extends to boycotting, which the court defined as “a method of pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target.” So, while boycotting is not a classical form indicative of a concerted effort amongst competitors, it is, by definition, an agreement to take action, or refrain from doing so. While the Court of Appeals only found that the first part of the scheme amounted to a facial violation, the Court found that the allegations regarding the boycotting scheme amounted claims sufficient to amount to a per se violation.

The Unruh Civil Rights Act prohibits a wide range of discrimination in public accommodations, including a prohibition against discriminating against an individual based upon their disability status. Following its initial enactment, the Unruh Civil Rights Act (“Unruh”) was expanded to incorporate the Americans with Disabilities Act (“ADA”), which also prohibits discrimination on the basis of disability in the enjoyment of public accommodations. Unruh does not expressly address service dogs, but the ADA does, and it defines a service animal to mean “any dog that is individually trained to do work for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.” Further, the statute requires that the animal have completed training. The California Court of Appeal noted in a 2017 case that the language of the statute used the word “trained” and read it as to exclude animals that are in the process of being trained, or that have not yet completed training, from inclusion as a service animal under the Americans with Disabilities Act. Surprisingly, the Department of Justice (“DOJ”) has also weighed in on the characterization of service animals who have been trained or are currently in training. The DOJ published a series of responses to frequently asked questions in 2015, and interpreted the ADA as to require that a dog be already trained before it can be taken into public places. The California Court of Appeal relied upon the statutory language of Unruh and the ADA, along with the guidance from the DOJ to arrive at its decision that the prohibition against arbitrary discrimination in public accommodations applies to trained service dogs, but not service dogs in training.

The syntactic distinction may seem minor, but the difference in a “trained” and “in-training” service animal has significant societal and legal implications. First, the training of service animals, like any sort of training, requires experience in the sort of locations and situations in which it will be utilized in the future. This interpretation will impose severe limitations on the availability of locations in which service animals may receive beneficial training, and could result in the sort of consequences the statute was enacted to protect. Secondly, this ruling will also likely impact the number of service animals that will be available to disabled persons in the future, as the ruling imposes limitations on the viability of getting the service animals trained properly and in a timely manner.

However, the Court of Appeal’s analysis did not end there. The Disabled Persons Act (“DPA”) expressly addresses service animals and, unlike the ADA, extends the protections against arbitrary discrimination to service animals that are being trained. That extension of protection is not without limitation, however, as it requires that the animal’s presence in the place of public accommodation must be “for the purpose of furthering their training.” Further, the DPA recognizes only three categories of people who are permitted to bring a service animal which is in the process of being trained into an establishment for the purpose of furthering that training: (1) the disabled person; (2) persons licensed to train service animals; and (3) persons “authorized” to train services animals. Because the term “authorized” has various meanings, the court analyzed how to best define the term at length, and concluded that “persons authorized to train” service animals means “any person who is credentialed to do so by virtue of their education or experience.

The National Transportation Safety Board (“NTSB”) recently released a report discussing its findings as to a fatal crash in May 2016 involving an automated vehicle manufactured by Tesla. The automobile was equipped with a quasi-experimental automated driver assistance system that failed to detect a semitrailer crossing an intersection in front of the car. However, the NTSB report concluded that the vehicle’s cruise control was set at 74 miles per hour, above the 65 miles per hour speed limit at the time of the accident. Like other “self-driving” vehicles that are being introduced on the roadways, the Tesla is also equipped with “torque sensors” on the steering wheel that monitor when and for how long the human operator’s hands are on the steering wheel. According to the report, the driver had Autopilot engaged for 37 of the total 41 minutes of the trip, and data removed from the vehicle following the crash indicates that the driver only had his hands on the wheel seven times when the system was engaged for a total of 25 seconds.

Skeptics of the autonomous vehicle movement have been warning that the automated driver assistance systems as currently designed do not sufficiently monitor driver engagement in the operation of the vehicle to an extent necessary to prevent the occurrence of similarly fatal wrecks. NTSB investigators suggested that the driver’s lack of engagement indicated an over-reliance on the autopilot system, meaning that the torque monitors are not effectively ensuring sufficient driver engagement. Moreover, the most important aspect of driving, visually observing the roadway and any obstructions that may exist, is not monitored by the torque monitors on the steering wheel. So, even where a driver has his hands on the wheel, the technology in its current form has no requirements that the driver be actually paying attention to the roadway. Moreover, as indicated in the NTSB report, the actual time that a driver is required to place his hands on the steering wheel while the autopilot function is engaged appears to be minimal.

The design and programming of the autopilot systems raises important legal considerations regarding who may be held liable for this sort of accident – where a vehicle operator is following the prompts set forth by the automated driver assistance system, but crashes anyways. If the manufacturer requires that a driver be vigilant and alert at all times, especially when autopilot is engaged, can the manufacturer still be held liable if the system designed to monitor the drivers engagement is defectively designed? In such a scenario, an injured party may argue that the manufacturer knew, or should have known, that the automated driver assistance system could not effectively ensure that the human operator was sufficiently engaged. After all, the fact that the manufacture installed a torque monitor on the steering wheel indicates that the design of the system was dependent upon a human fail-safe. If that human fail-safe was defective – the torque monitor failed to effectively monitor driver engagement – there is a strong argument that the entire design of the automated driver assistance system was defective.

The Driver’s Privacy Protection Act (DPPA) generally protects the personal information of civilian citizens that is contained in government databases from access by government employees for reasons other than legitimate law enforcement purposes. Because of the special authority positions held by law enforcement personnel and the potential for abuse of that power, DPPA provides that the court may award actual damages, punitive damages, as well as attorneys’ fees and other reasonably incurred litigation costs. Such damages may be awarded for each instance that a person knowingly obtains, discloses, or uses personal information from a motor vehicle record with an improper purpose.

The facts of Ela v. Destefano represent the exact type of circumstances DPPA was enacted to protect. Kathleen Destefano was an Orange County Sheriff’s Deputy who was romantically involved with Dennis Ela while he was married to Theresa Ela. Using her access to law enforcement databases, Destefano searched for Mrs. Ela while sitting alone in her patrol car 101 times. According to the record, Destefano used Mrs. Ela’s name to review photographs, addresses, vehicle information, and the like without any legitimate law enforcement purpose. Destefano’s misuse was not discovered until Mrs. Ela requested access to public records and discovered Destefano’s misuse of the databases. Mrs. Ela subsequently complained to the Professional Standards Division of the Orange County Sheriff’s Office and she filed a civil suit against Destefano seeking compensation for emotional distress, over $1,000,000 in compensatory damages and $153,787 in attorney’s fees. However, she was awarded only $15,379 in attorney’s fees and $2,500 in liquidated damages, which she appealed to the 11th Circuit Court of Appeals.

On appeal, Mrs. Ela argued that the statute’s plain language explicitly required $2,500 per violation, entitling her to over $1,000,000 in liquidated damages. The Court of Appeals, however, disagreed, holding that the award of any damages under DPPA was permissive and discretionary, “therefore, the district court, in its discretion, may fashion what it deems to be an appropriate award.” Thus, the Court of Appeals upheld the District Court’s award of $2,500 in liquidated damages and rejected Mrs. Ela’s arguments for $2,500 in compensation per violation.

The Eleventh Circuit Court of Appeals recently ruled that a person’s status as an authorized user on a credit card account can be used to calculate an individual’s credit score, even where the individual is not financially responsible for any debts on the card. The plaintiff in the case, Kathleen Pedro, was designated as an authorized user on her parents’ credit card when they were diagnosed with, and began suffering from, disabling illnesses. Pedro used the card to assist her ill parents in making purchases, as well as to purchase airline tickets that she used to visit with her parents. The Capital One account held by Pedro went into default following their deaths in 2014. Despite never assuming financial responsibility for any debts on the card, TransUnion and Equifax, both credit reporting agencies, included in the calculation of Pedro’s credit score the default on her parents’ credit card, causing her credit score to drop more than 100 points on the Equifax report. Pedro’s status as an authorized user on the Capital One account was subsequently revoked pursuant to Pedro’s request, but the credit reporting agencies refused to remove the account from Pedro’s credit report until Capital One requested that Equifax and TransUnion delete the account from Pedro’s credit reports. Following Capital One’s request and the removal of the credit card from her credit report, Pedro’s account returned to its prior excellent level.

Pedro’s complaint in the district court was based on the Fair Credit Reporting Act, 15 U.S.C. § 1681, and alleged that Equifax and TransUnion had failed to “follow reasonable procedures to assure maximum possible accuracy” of the credit reports of authorized users of credit card accounts. In affirming the District Court’s dismissal of the cause of action, the Court of Appeals agreed that the agencies “followed and objectively reasonable interpretation of the act” when they “read section 1681e(b) to permit them to report information about accounts which the consumer is an authorized user.” In rejecting Pedro’s argument, the court upheld the high burden of proof imposed upon individual plaintiffs who may bring suit under the Fair Credit Reporting Act. To prevail against a credit reporting agency under the Fair Credit Reporting Act, a plaintiff must first establish that a credit reporting agency willfully failed to comply with the relevant section by either knowingly or recklessly violating the act. But, unfortunately for Kathleen Pedro, the Court of Appeals held that when a credit reporting agency adopts a reading of the act that it not objectively unreasonable the conduct falls well short of raising the “unjustifiably high risk” of violating the statute necessary for reckless liability.

This holding indicates that there are many important considerations that consumers should keep in mind before agreeing to be included as an authorized user on the credit card of another. First, the holding demonstrates that consumers should familiarize themselves with the spending habits or history of the holders of the credit cards to which they are considering being added. Because a consumer’s credit report can now include accounts to which the consumer is only an authorized user, the spending habits of others can negatively impact the consumer’s ability to take out loans, and may increase the amount of an initial deposit that must be made when buying a car. Second, consumers should consider alternatives to simply being added as an authorized user to a pre-existing account, such as creating a trust. In this case, because Ms. Pedro was using the credit card to care for her parents and to purchase airline tickets so that she could provide care for them in person, an attorney could have created a trust for her to use that would limit the use of the money to certain purposes, while protecting Ms. Pedro’s previously impeccable credit score.

A deadly crash earlier this week has left a motorcyclist dead and another in custody on suspicions that he was driving under the influence. The driver, 35 year-old Tarus Riggins, was operating a silver Porsche SUV when his vehicle struck Patrick Kuhen as he was driving his motorcycle at Ponce de Leon Avenue and Clifton Road, resulting in Kuhen’s death. While the criminal case may take years to arrive at a resolution, the surviving family members of Kuhen are likely entitled to compensation for the wrongful death of Kuhen at the hands of Riggins. A wrongful death suit entitles the claimant to the full value of the life of the decedent resulting from a homicide, which is defined in the Georgia Code as “all cases in which the death of a human being results from a crime, from criminal or other negligence.”

Moreover, aggravating circumstances can increase the amount the family members of a victim may receive. Aggravating circumstances give rise to punitive damages, which may be awarded only in tort actions in which “it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Furthermore, the Georgia Code specifically provides that if it is found that the defendant acted, or failed to act while under the influence of alcohol or drugs, “there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor.” Thus, the amount which the victims of a drunk driver may recover is limitless, although actual recovery of the funds awarded in a judgment can occasionally pose difficulties due to the drunk driver’s financial situation. For example, if a defendant against whom a civil verdict is rendered for a tort action arising from drunk driving is impoverished, there may be little that a prevailing plaintiff can do to recover the amount awarded. However, where such a defendant is financially stable, or owns a significant number of assets, the prevailing plaintiff can reach all of the assets to recoup the amount awarded through the judgment.

Additionally, even bankruptcy cannot protect a financially stable defendant from recovery. Although bankruptcy generally discharges the debts of the filing party some debts are non-dischargeable, meaning that even after filing for bankruptcy, the filing party is still liable for the amount owed under the debts, and a debt incurred through a tort suit as a result of drunk driving is a type of debt that is non-dischargeable. This rule operates so as to protect injured plaintiffs from forfeiting their recovery due to a wealthy defendant hiding behind the bankruptcy laws. So, where the court finds that an award of punitive damages is proper, the plaintiff can then seek discovery of the defendant’s assets, bank accounts, or other financial holdings to demonstrate to the jury what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. The actual amount of punitive damages awarded is then left for the jury, or trier of fact, to determine.

*No Recovery No Fee refers only to fees charged by the attorney. Court costs and other additional expenses of legal action usually must be paid by the client. Contingent fees are not permitted in all types of cases.